ATTORNEYS:On
behalf of the plaintiff-appellant, the cause was submitted on the briefs of Julie
C. Dawson of Wagner & Todryk, S.C., Menomonie.

Respondent

ATTORNEYS:On
behalf of the defendant-respondent, Labor and Industry Review Commission, the
cause was submitted on the brief of James E. Doyle, attorney general,
and Monica Burkert-Brist and Karen E. Timberlake, assistant
attorneys general.

COURT OF APPEALS

DECISION

DATED AND FILED

NOTICE

December 9, 1997

This opinion is subject to further
editing. If published, the official version will appear in the bound volume
of the Official Reports.

Marilyn L. Graves

Clerk, Court of Appeals

of Wisconsin

A party may file with the Supreme Court
a petition to review an adverse decision by the Court of Appeals.See § 808.10 and Rule 809.62, Stats.

No.97-0865

STATE OF WISCONSIN

IN COURT OF
APPEALS

Todd
E. Lange,

Plaintiff-Appellant,

v.

Labor
and Industry Review Commission, Ideal

Door
Company and Fireman's Fund Insurance

Company,

Defendants-Respondents.

APPEAL
from an order of the circuit court for Polk County:ROBERT H. RASMUSSEN,
Judge.Reversed and cause remanded.

Before
Cane, P.J., Myse and Hoover, JJ.

MYSE,
J.Todd Lange
appeals an order of the circuit court affirming a decision of the Labor and
Industry Review Commission (LIRC).In
its decision, LIRC barred Lange from further recovery of worker’s compensation
benefits after he incurred a non-work-related accident subsequent to a
compensable work-related accident, and rejected his claim for loss of earnings
capacity benefits. Lange contends that LIRC erred[1]
by barring worker’s compensation because its determination that his
work-related injury was not a substantial factor in his non-work-related injury
is not supported by substantial and credible evidence, and because its determination
that his conduct prior to the re‑injury constituted an intervening cause
lacked a reasonable basis.Because we
agree with both of Lange’s contentions, we reverse LIRC’s decision and
remand.We do not review Lange’s
argument regarding lost earning capacity benefits, however, because Lange
raises this issue for the first time on appeal.

The
facts material to this appeal are largely undisputed.Lange sustained a compensable work-related injury to his back
while employed for Ideal Door. An MRI (magnetic resonance imaging) revealed
that Lange had degenerative disc disease at L4-5 with a small focal disc
herniation and nerve impingement.

Over
one year later Lange slipped and fell while walking on some ice at a friend’s
house, causing the previously herniated disc to protrude and fragment.Lange was hospitalized after this slip and
fall, and told his doctors that he had been drinking beer before he slipped.[2]

Lange
continued working for Ideal Door after this slip and fall, was laid off, and
then offered a new position at the end of his worker’s compensation
hearing.LIRC denied worker’s
compensation benefits to Lange and rejected his claim for loss of earnings
capacity benefits.Lange appeals from
the circuit court decision affirming LIRC’s determination.

In
addressing the issue of whether Lange’s non-work-related re‑injury was
compensable, LIRC determined that the appropriate legal standard was whether
“the work injury [was] a ‘substantial factor’ in the off-duty injury.”LIRC concluded that the injury sustained by
the slip and fall was independent of and would have occurred without regard to
the first injury, and was therefore not compensable.In support of its finding, LIRC relied on the number of new
symptoms occurring after the re-injury, medical reports that showed Lange’s
back condition was stable or improving just prior to the fall, and the medical
report of Dr. David Ketroser, whom LIRC viewed as the most credible
doctor.LIRC quoted the following
portion of Dr. Ketroser’s report for support:

[IMPRESSION: … It is my impression, therefore, that this
patient had a mild right L4-5 disc herniation to the right] which was
significantly worsened by the fall described on January 31, 1992, such that he
currently has a free fragment disc herniation at that level, with more
significant nerve root compression at L5 and S1.

….

[CAUSE:] By history, the cause of this patient’s initial
right L4-5 disc herniation with right L5 nerve root impingement was the
incident described at work on December 12, 1990.The clinically significant worsening of this condition, which led
to additional treatment and testing, was the fall on January 31, 1992.(Bracketed material is from the original
report of Ketroser but was omitted in LIRC’s quote, it is added for clarity.)

A
factual finding of the commission is conclusive as long as it is supported by
credible and substantial evidence.Section 102.23(6),
Stats.; Brakebush Bros. v.
LIRC, 210 Wis.2d 624, 630-31, 563 N.W.2d 512, 515 (1997).This is so even if we believe that the
weight of the evidence supports a contrary finding.Hagen v. LIRC, 210 Wis.2d 12, 20, 563 N.W.2d 454,
459 (1997).We are also to consider
conclusive any finding of the commission that is based upon a reasonable
inference from the evidence.Kraynick
v. Industrial Comm’n, 34 Wis.2d 107, 111, 148 N.W.2d 668, 670 (1967).

Determining
whether an injury is a proximate result of a compensable injury under the
worker’s compensation laws is a question of fact for the commission.Harnischfeger Corp. v. Industrial
Comm’n, 253 Wis. 613, 615-16, 34 N.W.2d 678, 679 (1948).Additionally, the weight and credibility to
be accorded to both witnesses and medical evidence are functions left to the
commission.Brakebush,
210 Wis.2d at 631, 563 N.W.2d at 515.

A
commission’s legal conclusions are accorded varying levels of deference,
depending largely on the level of experience the commission has in interpreting
the statute.SeeJicha v.
DILHR, 169 Wis.2d 284, 290-91, 485 N.W.2d 256, 258-59 (1992).LIRC argues that its over seventy-year
history in interpreting the worker’s compensation statutes should entitle its
legal conclusions to great weight.Lange does not dispute this; therefore, for purposes of this appeal we
will afford LIRC’s legal conclusions great weight.They will therefore be upheld as long as they are supported by a
reasonable basis.UFE v. LIRC,
201 Wis.2d 274, 284, 548 N.W.2d 57, 62-63 (1996).

In
its decision, LIRC did not discuss in great detail the extent to which the
work-related and non-work-related injuries must be connected before the first
injury can be considered to be a substantial factor in the second injury.LIRC did note that a re-injury is
compensable if it is caused by the weakened condition of a worker, Western
Lime & Cement Co. v. Boll, 194 Wis. 606, 608‑09, 217 N.W. 303,
304 (1928), or if the work-related injury made the worker more vulnerable to
re-injury, Burton v. DILHR, 43 Wis.2d 218, 228-28a, 168 N.W.2d
196, 200-01 (1969).LIRC also
specifically concluded that Lange’s second injury “alone was responsible for
the dramatic change,” thereby implying that if the first injury was related to
the results caused by the second injury, the injury would be compensable.

We
agree with this implicit conclusion.A
work-related injury that plays any part in a second, non-work-related injury is
properly considered a substantial factor in the re-injury.It will not be a substantial factor,
however, where the second injury alone would have caused the damages.For LIRC to conclude that a work-related
injury is not a substantial factor in a second, related injury, it must find
that the claimant would have suffered the same injury, to the same extent,
despite the existence of the work-related injury.In all other cases where the two injuries are related, however,
the re-injury will be compensable.

We
conclude that LIRC’s factual finding that the slip and fall alone was
responsible for the worsening of Lange’s back condition is not supported by
substantial and credible evidence.By
definition an aggravation of a pre-existing condition links the two
injuries. Lange’s work-related injury was a disc herniation at L4-L5, and all
the evidence demonstrates that this back condition was made worse by his second
fall so as to create a further herniation.

No
doctor expressed the opinion that this second injury would have occurred
without regard to the work-related injury.On the contrary, every doctor suggested that the extruded disc was
related to the injuries sustained as a result of the work-related
accident.Dr. Richard Galbraith concluded
that the January 1992 fall was “a secondary aggravation of the pre-existing
condition,” and that the original injury predestined Lange to have further
problems with his back.Dr. Douglas Jacot, Lange’s treating chiropractor, testified that
Lange would not have sustained the later injury in the absence of the first
injury.Dr. Thomas Rieser concluded
that Lange’s injury “was significantly aggravated” after the January 1992
fall.Dr. William Ganz stated that
Lange’s disc herniation had “significantly deteriorated” as a result of the
re-injury.

The
commission found the report of Dr. Ketroser, however, to be more credible than
the reports of the other doctors, and relied on his report to support its
findings.We acknowledge that the
commission has the right to determine which of the various witnesses is most
credible, Brakebush, 210 Wis.2d at 631, 563 N.W.2d at 515, even
where such an opinion is contrary to the great weight of the evidence, Hagen,
210 Wis.2d at 20, 563 N.W.2d at 459.Dr. Ketroser’s report, however, does not support the commission’s
finding that the second injury would have occurred to the same extent and in
the same manner without regard to the initial injury.There is nothing in his report to indicate this fact.Rather, Dr. Ketroser continually refers to
the second injury as a “worsening” of the initial injury.The only meaning that can be attached to
these words is that the second injury aggravated the prior work-related injury.

The
facts involved in the slip and fall also do not permit LIRC to reasonably infer
that Lange would have suffered the same injury, to the same extent, in the
absence of the initial injury.Lange
was an otherwise healthy man in his twenties who merely slipped and fell while
walking on ice.These circumstances are
not so dramatic as to permit the necessary inference.

The
dissent suggests that the fact that Lange’s symptoms became significantly worse
after the slip and fall is sufficient to permit LIRC to infer that Lange’s
re-injury is unrelated to his initial injury.We disagree.New symptoms
arising from a re-injury, standing alone, do not suggest whether a relationship
exists between the two injuries.If an
earlier accident renders a worker’s back more vulnerable to re-injury, a second
injury in the same location almost certainly will cause new symptoms.We therefore reject that new symptoms alone
can permit such an inference, and conclude that there is no evidence to support
LIRC’s finding that Lange’s second injury was independent and unrelated to his
work-related injury.

LIRC
also supported its denial of benefits to Lange on an intervening cause
theory.Under this analysis,
compensation for a non-work-related re-injury of which a work-related injury
was a substantial cause may be denied where the claimant voluntarily engages in
conduct that the claimant should know would place him or her at a greater risk
of re-injury.See Kill v.
Industrial Comm’n, 160 Wis. 549, 552-53, 152 N.W. 148, 149 (1915) (by
engaging in boxing match nine days after cutting wrist at work, claimant’s
decision to fight constituted an intervening cause which prevented further
compensation).LIRC determined that
Lange should have known that drinking beer and walking on the ice created a
foreseeable risk of re‑injury, and that this conduct therefore
constituted an intervening cause.

Where,
as here, the facts material to an appeal are undisputed, the application of
those facts to the appropriate legal standards involves a question of law.First Nat’l Leasing Corp. v. Madison,
81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).Normally, our next step would be to determine what level of
deference is owed to the commission’s legal conclusions: great weight, due
weight, or no weight.SeeJicha,
169 Wis.2d at 290-91, 485 N.W.2d at 258-59.As we have already noted, however, the parties do not dispute that this
court should apply the great weight standard, and we do so accordingly.

We
conclude that LIRC’s determination that Lange placed himself in a position
where re-injury was foreseeable lacks a reasonable basis and is therefore
erroneous.SeeUFE,
201 Wis.2d at 274, 548 N.W.2d at 62-63.Walking on ice is a virtual necessity for Wisconsin residents in
January, and as long as it is done with due care there is no foreseeable risk
of injury.There is no evidence to
suggest that Lange did not demonstrate due care.While Lange may have been drinking beer before he walked and fell
on the ice, the record is devoid of any indication that Lange’s drinking had
any influence on him or otherwise contributed to his fall.In the absence of such evidence, LIRC’s
conclusion that Lange’s beer consumption was related to his fall is rank
speculation.The total lack of any
evidence suggesting a relationship between the consumption of some beer and the
fall precludes LIRC’s determination that this injury was caused by an
intervening cause.

Lange’s
final challenge involves LIRC’s decision to deny him benefits for lost earning
capacity.Lange claims that LIRC erred
by not specifically finding that he refused Ideal Door’s job offer without
reasonable cause, see § 102.44(6)(g),
Stats., and further claims there
is insufficient evidence in the record to support such a finding. While Lange
is technically correct, we note that the reason for the absence of such a
finding and any evidence on the issue is that Lange did not raise this issue
before LIRC.

The
court of appeals is an error-correcting court, and does not engage in
fact-finding.See Milwaukee
Journal v. Call, 153 Wis.2d 313, 319, 450 N.W.2d 515, 517 (Ct. App.
1989).On review to the commission and
the circuit court, Lange’s strategy involved an attack on the good-faith nature
of the job offer.That position
failed.Now Lange is trying to change
his strategy to raise a claim that was not put before LIRC or the circuit
court.We will not address an issue
raised for the first time on appeal.Brown
County v. WERC, 138 Wis.2d 254, 267, 405 N.W.2d 752, 757 (Ct. App.
1987).

We
conclude that LIRC erred by denying Lange benefits because its determination
that his work-related injury was not a substantial factor in his re-injury is
not supported by substantial and credible evidence, and because its
determination that his conduct prior to the re-injury constituted an
intervening cause is not supported by any evidence and therefore lacks a
reasonable basis.We further conclude
that Lange’s appeal from that part of LIRC’s order LIRC denying benefits for
lost earning capacity is waived.We
therefore reverse the commission and remand this matter to LIRC.

By
the Court.—Order reversed and cause remanded.

No. 97-0865(d)

Cane, P.J. (dissenting).I respectfully dissent from the
majority's conclusion that LIRC's factual finding is not supported by the
evidence.The evidence is disputed as
to whether the dramatic change in Lange's spine from the slip and fall was
caused by a weakened condition from the earlier work-related injury.I would conclude that there is sufficient
evidence from which LIRC could reasonably infer that the slip and fall alone
was responsible for the dramatic change in Lange's spine.

There is no contention
that LIRC used an improper standard under the holdings in Western Lime
& Cement Co. v. Boll, 194 Wis. 606, 608-09, 217 N.W. 303, 304
(1928), and Burton v. DILHR, 43 Wis.2d 218, 228-28a, 168 N.W.2d
196, 201 (1969).Essentially, these
cases hold that a person's subsequent non-work injury may be compensable under
worker's compensation if it is caused by the weakened condition of the worker
from the earlier work-related injury.Said in another way, the earlier work-related injury must have made the
worker more vulnerable to re-injury.

Professor
Arthur Larson helps us understand this area of the law where he states that an
off-duty injury is compensable when the "episode is some nonemployment
exertion like raising a window or hanging up a suit, so long as it is clear
that the real operative factor is the progression of the compensable
injury."1 Arthur Larson, Worker's Compensation §§ 13.11(a)
(1997).Neal andDanas describe it another way by saying that
if medical proof establishes that the residual effects of a compensable injury
cause a subsequent off-the-job re-injury, the employer is liable for the
subsequent reinjury.John D. Neal & Joseph Danas, Jr., Worker's
Compensation Handbook § 3.37 (4th ed. 1997).Therefore, LIRC's duty in this case was to
examine whether Lange's earlier work injury was a substantial factor in his
later injury from the slip and fall.LIRC concluded it was not, and I agree there is sufficient evidence for
it to reasonably reach this conclusion.

We
review a commission's factual findings with great deference.Princess House, Inc. v. DILHR,
111 Wis.2d 46, 54, 330 N.W.2d 169, 173 (1983).In fact, the factual findings are conclusive so long as they are
supported by credible and substantial evidence. Brakebush Bros. v. LIRC,
210 Wis.2d 624, 630-31, 563 N.W.2d 512, 515 (1997); § 102.23(6), Stats.This is so even if we believe that the weight of the evidence supports a
contrary determination.Hagen v.
LIRC, 210 Wis.2d 12, 24, 563 N.W.2d 454, 459 (1997).We are also to consider conclusive any
finding of the commission that is based upon a reasonable inference from the
evidence.Kraynick v. IndustrialComm'n, 34 Wis.2d 107, 111, 148 N.W.2d 668, 670 (1967).

Whether
an injury is a proximate result of a compensable injury under the worker's
compensation laws is a question of fact for the commission.Harnischfeger Corp. v. Industrial
Comm'n, 253 Wis. 613, 615-16, 34 N.W.2d 678, 679 (1948).Additionally, the weight and credibility to
be accorded to both witnesses and medical evidence are functions left to the
commission.Brakebush,
210 Wis.2d at 631, 563 N.W.2d at 515.

Here,
LIRC accepted Dr. David Ketroser's report as most credible.Based primarily on his report, LIRC noted
that prior to the slip and fall, Lange's back was relatively stable, if not
improving.His back symptoms were
decreasing and lifting restrictions had been loosened.After the slip and fall, Lange experienced a
number of new symptoms, including foot drop and radiation of pain to the right
leg.This was a dramatic change from
Lange's prior condition.

LIRC
inferred from Lange's prior condition, and then the subsequent dramatic change
after the slip and fall, that the second accident alone was responsible for
Lange's present injury.Unlike the
worker in Burton who reinjured himself after a sneezing attack
because of his weakened condition from the work injury, LIRC concluded that
Lange's present injury was not a result of the progression of the initial work
injury.This is a reasonable factual
inference from the evidence, and we should not disturb this factual finding,
even if we may not agree with its conclusion.Although one could certainly argue that the second injury only occurred
because the original injury weakened Lange, LIRC is entitled to reject this
inference.

The
majority reasons that an aggravation of a preexisting injury, by definition,
links the two injuries.I
disagree.Under the rationale of Western
Lime and Burton, the second injury is compensable only if
it is caused by the weakened condition from the work injury or where the
work-related injury made the worker more vulnerable to reinjury.If a worker has a bad back from a
work-related injury and then seriously injures himself in a later
non-work-related injury, the fact that the work injury is aggravated does not
mean the work injury was a cause of the subsequent non-work injury or the
result of a weakened condition.Nor
does the fact that the work injury is "significantly worsened" mean
that there is a causal relationship.It
simply means what the doctor said.His
spine condition is now significantly worse; it does not necessarily follow that
it is a progression of the work injury.This was the issue faced by LIRC, which concluded that Lange's injury
from the slip and fall was so dramatic a change from his prior condition that
the injuries were unrelated.It is a
reasonable inference, and it is not our role to change this factual
finding.Because of my above rationale,
I would not address LIRC's finding that Lange's act of drinking and then
walking on ice acted as an intervening cause.